Islam, Women and Feminism (16 Apr 2017 NewAgeIslam.Com)

A five-judge constitutional bench of the Supreme Court is to hear petitions challenging Muslim practices of triple Talaq, Nikah Halala and polygamy from May 11. This is a great opportunity for much-needed reforms in Muslim Personal Laws that previous governments beholden to Mullahs have not been able to bring about. But fundamentalist Mullahs are prepared to go to any extent to preserve their turf. They are holding conferences after conferences to show their muscle. But they will not be able to hide their theological infirmities.

In an affidavit, the All India Muslim Personal Law Board (AIMPLB) has taken what can only be called a bizarre doctrinal stand. It has told the Supreme Court that if triple talaq mode of divorce was declared illegal, it would amount to disregarding Allah's directions and rewriting of the Holy Quran to force Muslims into committing sin. As almost the entire Muslim world, including Saudi Arabia, Pakistan and Bangladesh have declared instant triple talaq illegal, clearly in view of the AIMPLB; they have all gone beyond the pale of Islam. Now Islam is a religion being practiced only by some Indian Mullahs, so it would seem. This even amounts to declaring Shias as well as Sunni Wahhabi sects like Ahl-e-Hadith apostate because they consider triple talaq in one session as equal to only one reversible talaq.

Even stranger is the fact that AIMPLB consists of Ulema from Shia, Ahl-e-Hadith and other Salafi-Wahhabi sects as well. Why are they not protesting at being virtually called apostate groups which have “re-written Quran and forced Muslims to commit sin, altering the very essence of the religion of Islam” by a group of which they are members?

The most astounding fact in the AIMPLB affidavit is the justification it seeks for instant triple talaq from the Holy Quran. This has never been done before. Everyone knows there is no justification for instant triple talaq in the holy Quran. All protagonists of the triple talaq in one sitting have so far only quoted Ahadith (so-called sayings of the Prophet, many of them clearly weak and inauthentic, collected hundreds of years after the demise of the Prophet) and juristic rulings of companions of the prophet, or later jurists and theologians.

In fact, there is a hadith narrated by Ibn Abbas (ra) that in the case of brother of Mutlab, Rukanah bin Abd Yazeed who had divorced his wife three times in one session, the Prophet (Peace be upon him) said “then it has the effect of only one divorce, if you want to take her back you can.” Thus, Rukahnah took her back.

The AIMPLB quotes the following verses of the Quran as a proof for its contention that triple talaq in one session is to be treated as three and irreversible divorce: “Divorce can be pronounced twice: then, either honourable retention or kind release should follow. .... Then, if he divorces her, she shall not be lawful to him unless she first takes another for a husband.” (Quran Al- Baqarah 2:229 and 230)

The trick here lies in concealing the verses that come before and after these verses.

Let us study the Quran’s position on divorce and expose the AIMPLB’s game. Quran starts with suggesting a cooling off period. “Those who intend to divorce their wives shall wait four months; if they change their minds and reconcile, then God is Forgiver, Merciful. If they go through with the divorce, then God is Hearer, Knower. [Quran Al- Baqarah 2: 226--227]

The following verse shows why AIMPLB is seeking to hide it from the Supreme Court.

"And the divorced women (after the pronouncement of the divorce) must wait for three monthly courses... and their husbands are fully entitled to take them back (as their wives) during this waiting period, if they desire reconciliation." (Al-Baqarah: 228)

AIMPLB is also hiding from the court the last verses of the series: “And so, when you divorce women and they reach the end of their waiting term, then either retain them in a fair manner or let them go in a fair manner. And do not retain them to their hurt or by way of transgression; whosoever will do that will indeed wrong himself.” (Al-Baqarah (2:231)

Not content with this, God further encourages reconciliation, calling it better and purer: “And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their [former] husbands if they agree among themselves on an acceptable basis. That is instructed to whoever of you believes in Allah and the Last Day. That is better for you and purer, and Allah knows and you know not.” (Al-Baqarah (2:232)

Has the AIMPLB not read the following verse either? “If a couple fears separation, you shall appoint an arbitrator from his family and an arbitrator from her family; if they decide to reconcile, God will help them get together. God is Omniscient, Cognizant.” [Quran 4:35]

Where is the opportunity for reconciliation that God demands in the Anglo-Mohammedan law that goes in the name of Muslim Personal Law in India? Why is AIMPLB seeking to hide these verses of Quran from the Supreme Court? Can’t the Muslims and the court see the immoral, fraudulent nature of the AIMPLB’s position?

Clearly, unlike the un-Quranic view of AIMPLB, God gives Muslims full opportunity to consider divorce patiently before engaging in the third and final divorce as a last resort, when every attempt at reconciliation has failed. Quran stands for a well thought out decision made only as a last option for what the Prophet (pbuh) called “the most undesirable act before God among those permitted.” (Sunan Abu Dawud, Bab Karahiya al- Talaq, 1, 526. Hadith no: 2179).

No Muslim would stand for a hasty decision in regard to something like marriage that the Quran refers to as a ‘strong covenant’ (4:22). How can the Quran itself allow this “strong covenant” to be broken in a matter of seconds?

In India, many a time Muslims pronounce talaqs three times in a huff, either in a state of anger, depression or drunkenness, and then regret later. Shia ulema or those from Sunni Salafi sects like Ahl-e-Hadith that follow Quran will tell them not to worry, just keep living with your wife as talaqs pronounced in one session thrice or hundred times will have the effect of only one talaq which is easily reversible. But Mullahs from AIMPLB, which surprisingly contains Shia and Ahl-e-Hadith ulema as well, will say that now the person concerned has no option but to take recourse to nikah-e-halala, an absolutely vile and obscene practice prevalent only among Indian Muslims now. This means that the “divorced” woman (actually not divorced from the viewpoint of Quran) will be forced to “marry” again, sleep with a stranger, often a local Mullah, for a few nights and then get divorced again and marry her husband again to get back to her previous life. All this for no fault of hers.

It is well known that when someone dared to pronounce three talaqs in a row during Prophet’s time, he flew into a rage and said: “How dare you turn my religion into a joke while I am still alive.” He allowed him to take his wife back as he was already penitent, treating the three talaqs in one sitting as one reversible talaq. The second rightly guided caliph Hazrat Umar instituted a system of punishing with 40 lashes anyone who pronounced three talaqs in one sitting.

Though a supporter of instant triple talaq, Mufti Taqi Usmani, a Deobandi scholar of Pakistan admits in his well-regarded book Dars-e-Tirmidhi: “According to Imam Abu Hanifa ([702--772 CE] to whose school of thought most Indian Muslims belong and so call themselves Hanafi) and Imam Malik ibn Anas (711-–795 CE), this (triple talaq in one sitting) is haram (forbidden) and bid’at (innovation). A narration of Imam Ahmad ibn Hanbal (780--855 (CE) also supports this opinion. It is also quoted that the holy companions (of the Prophet) like Hazrat Umar Faruq, Hazrat Ali, Hazrat Ibn Masuood, Hazrat Ibn Abbas and Hazrat Ibn Umar (may Allah be pleased with all of them) also adopted the same view.”

Quoting Muhammad bin Muqatil al-Razi, Deobandi scholar Waris Mazhari points out that Imam Abu Hanifa too supported the view that three talaqs in a row are to be considered on reversible talaq. And so did the teacher and mentor of Hammad bin Abu Sulaiman, Imam Nakhaee, who was the teacher and mentor of Imam Abu Hanifa.

These were the opinions of the first few generations of Muslims in 7th/ 8th/and 9th century CE. But even 13th/14th century jurists of the stature of Ibn Taimiyah, Ibn al-Qiyam, and the Shi‘a Imamiyah, consider three pronouncements of the word talaq in one session equal to only one reversible talaq. The same is true of several well-known modern scholars like Rashid Rida, Muhammad Shaltut, and Yusuf al-Qaradawi, etc.

There have also been jurists in this period who were prepared to take three talaqs in one session as final. There were a variety of socio-political reasons informing their decisions.

But today an overwhelming majority of scholars in more than 25 Muslim states such as Egypt, Syria, Jordan, Iraq, Sudan, Morocco, Kuwait, Yemen, Afghanistan, Libya, Kuwait, Qatar, Bahrain, and the United Arab Emirates, are following Ibn Taimiyah’s and Ibn al-Qiyam’s stand on this issue, considering triple talaq as amounting to only one reversible talaq. So did Pakistan half a century ago. Bangladesh has improved its laws further after independence. Recently Sri Lanka has done the same.

The most pertinent
example is that of Pakistan’s Muslim Family Laws Ordinance, 1961, as Pakistani
Muslims, by and large, follow the same Hanafi fiqh as do most Indian Muslims. It
says:

Section 7, Talaq:

(1) Any man who wishes to divorce his wife shall, as
soon as may be after the pronouncement of talaq in any form whatsoever, give
the chairman a notice in writing of his having done so, and shall supply a copy
thereof to the wife.

(2) Whoever,
contravenes the provisions of sub-section (1) shall be punishable with simple
imprisonment for a term which may extend to one year, or with fine which may
extend to five thousand rupees, or with both.

(3) Save as
provided in sub-section (5) talaq, unless revoked earlier, expressly or
otherwise, shall not be effective until the expiration of ninety days from day
on which notice under subsection (1) is delivered to the Chairman.

(4) Within thirty days of the receipt of notice
under Sub-section (1), the Chairman shall constitute an Arbitration Council for
the purpose of bringing about a reconciliation between the parties, and the
Arbitration Council shall take all steps necessary to bring about such
reconciliation.

(5) If the wife be pregnant at the time talaq is
pronounced, talaq shall not be effective until the period mentioned in
Sub-section (3) or the pregnancy, whichever later, ends.

(6) Nothing
shall debar a wife whose marriage has been terminated by talaq effective under
his section from remarrying the same husband, without an intervening marriage
with a third person, unless such termination is for the third time so
effective.

Unlike scholars in other countries, Indian Ulema are arguing that “though pronouncement of Triple Talaq in one go is undesirable but (it is) irrevocably effective.” They are quoting this verse of the Quran in support: The Quran itself declares, that: “Divorce is twice; then either to retain in all fairness, or to release nicely. [Surah-Al- Baqarah 2:229]. In its affidavit AIMPLB quotes Imam Bukhari (2, 791) to claim the following: “it is clear that though pronouncement of talaq thrice at one go is undesirable but in view of the aforesaid verse of the Holy Quran, it is clear that three pronouncements, howsoever they may be made result in valid dissolution of marriage.”

I would like to tell the AIMPLB that this fait accompli argument just does not hold water in view of the fact that God did not accept it in the case of Az-Zihar. In order to give talaq indirectly, some Arabs in Prophet’s time used to practice Az-Zihar. They would say that my wife is like my mother or sister, thinking that this would lead to an indirect talaq. This practice made God very angry. In Quran Chapter Al-Mujadila (58), verses 2 to 4, He calls this practice vile and falsehood, and a lie and prescribes punishment for those who engage in such vile practice.

“If any men among you divorce their wives by Zihar (calling them mothers), they cannot be their mothers: None can be their mothers except those who gave them birth. And in fact, they use words (both) iniquitous and false: but truly Allah is one that blots out (sins), and forgives (again and again). (Quran Sura Al-Mujadila (58), verses 2)

Clearly God does not accept the fait accompli argument in the case of divorce by Az-zihar: why should it then be applicable to triple talaq in one session? Our ulema have now come to agree that the practice of instant triple talaq is vile and abhorrent. But they don’t even prescribe any punishment for the evil-doer?

Ulema around the world have abandoned this practice, if at all it existed anywhere or at any time. It’s only Indian Muslims led by AIMPLB who are still refusing to bring their Personal Law in line with the Quran. AIMPLB itself calls this practice bid’at (innovation) and mamnoo’ (prohibited) in its law book Majmooa-e-Qawaneen Islam (Article 267). If it is bid’at (innovation that started after the demise of Prophet Mohammad), in its own view, how can it tell the Supreme Court that it is a practice supported by the Quran, and that declaring it illegal would amount to rewriting the Quran?

It’s time Indian Muslims rescued themselves from the un-Islamic and self-contradictory ways of their ill-informed, ill-intentioned, male chauvinist Mullahs. And it’s time Supreme Court helped them do that.

---

Sultan Shahin is the founding editor of a progressive Islamic website NewAgeIslam.com.

Note: A slightly shorter version of this article appeared first in FirstPost.com. This version is available at: firstpost.com/india/triple-talaq-row-mullahs-are-subverting-islam-and-misleading-the-supreme-court-3386432.html

I spoke to our MP on the subject and he asked me to tell him what our objections are. Here I have redrafted the Bill as I feel it should be: Please take up:

Govt. Draft above and my suggestions below each section/point.

Introduction:

A BILL to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.

My Objections/suggestions (Manzurul Haque)

Introduction:

A BILL to protect the rights of married Muslim women and to prohibit the misuse of Talaq by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.

(Note: Sure enough, Govt of India, does not want to selectively close the option of divorce to a Muslim couple)

Statement of Objects:

Point 3. In spite of the Supreme Court setting aside talaq-e-biddat, and the assurance of AIMPLB, there have been reports of divorce by way of talaq-e-biddat from different parts of the country. It is seen that setting aside talaq-e-biddat by the Supreme Court has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims. It is, therefore, felt that there is a need for State action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce.

(Note: Too much of a substandard clerical language really)

My Objections/suggestions (Manzurul Haque)

Statement of Objects:

Point 3. Supreme Court has declared void and illegal, what is popularly known and pracised amongst Indian Muslims as talaq-e-biddat , which in other words means, pronouncing of the word talaq three times in one sitting, by husband, giving finality to the divorce. Since this practice is widely prevalent in India, it is imperative to attach penal provisions to punish the promoters of such practice, be that the husband or his accomplices, in the furtherance of this practice.

Point 4. In order to prevent the continued harassment being meted out to the hapless married Muslim women due to talaq-e-biddat, urgent suitable legislation is necessary to give some relief to them.”

My Objections/suggestions (Manzurul Haque)

Point 4. (Note: Not needed being redundant)

Section 2. In this Act, unless the context otherwise requires,— (a) "electronic form" shall have the same meaning as assigned to it in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000; (b) " talaq-e-biddat” or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband; and (c) "Magistrate" means a Magistrate of the First Class exercising jurisdiction under the Code of Criminal Procedure, 1973, in the area where a married Muslim woman resides.

My Objections/suggestions (Manzurul Haque)

Please add this after (a) to (c) of Section 2 (definitions):

(d) Any number of pronouncements of the word 'talaq’ shall be counted as one which is the initiation of the process of talaq, to bring the talaq into completion at the end of Iddat perid.

(e) Halala: Halala should be understood as that kind of farcical halala, reportedly practiced in India, in which, after the talaq, the wife in question, intentionally contracts a marriage with another person, to premeditatedly seek similar talaq, from that another person she so marries, so that she becomes eligible and available to marry her ex-husband.

(f) Iddat: The iddat is a time period intervening between pronouncement of and legal effectiveness of talaq, with certain obligations, during which the divorced wife cannot re-marry with another person. The iddat of a woman, divorced by her husband is three monthly periods, unless she is pregnant in which case the iddat shall last until she gives birth. If the marriage was not consummated or if she does not menstruate, then in such cases, there is no iddat, and therefore a constructive period of three lunar months shall be deemed as the iddat for effecting reconciliation and reconsideration.

For a woman whose husband has died, the `iddah is four lunar months and ten days after the death of the husband, whether or not the marriage was consummated.

(i) Consent: In the case of a farcical halala taking place, the consent of a woman though given freely for the farcical halala, under influence of religion, would be legally deemed as obtained under psychological duress and would therefore be treated as ‘no consent'

Section 3 of the draft legislation reads,

Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.

My Objections/suggestions (Manzurul Haque)

Section 3. Any pronouncement of talaq, intending to be talaq-e-biddat, by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal. Any number of pronouncements of the word 'talaq’ shall be counted as one which is the initiation of the process of talaq, to bring the talaq into completion at the end of Iddat period. Before expiry of iddat-period, the husband shall not disturb or would be compelled to disturb the status quo of residence of wife, custody and residence of children, expenses of household and family members etc, the essential concomitants of a married life; and the husband shall have to undergo a formal counseling by a committee of two relatives, the proceedings of which shall be duly recorded as a legal document. During this period husband can re-establish relationship , called rujoo, with wife and has a right to do so. After Iddat period, man and woman by mutual consent alone, can perform fresh nikah and any interference in their performing fresh nikah would be deemed as perpetuating and promoting talaq-e-biddat . This opportunity of nikah with ex-wife, will however seize after the third talaq in the life time of the couple.

Section 4 of the Bill states;

"Whoever pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and fine.

My Objections/suggestions (Manzurul Haque)

Section 4. The impact of this criminal Act is not aimed at the interpersonal conjugal relationship between husband and wife, but on the social space in which the couple is situated, which leads to serious injustices to Muslim women. Therefore, upon utterance of 'Talaq' three times or more, by husband to wife, if any religious cleric or person, including a local ‘maulvi’ or ‘maulana’, is provenly found engaged in advising and or abetting separation from the wife of the husband, whatever may be the theological position on the question, which has already been divested of any legal persuasion by the Supreme Court judgment in Shayara Bano v. Union of India & Ors, 2017, then such advising person shall be punished with three years of imprisonment. If the relatives of the husband have been noticed of talking of halala and been found involved in the disturbing the status quo of the residence of the family etc., then each one of such relatives should be punished with one year of imprisonment . If a person knowing the facts of the case, actually performed so-called farcical halala with the ex-wife, irrespective of permission of wife or husband for doing the same, then the person who did halala and the maulvi who performed nikah-e-halala, shall be punished for ten and five years of imprisonment respectively.

Notwithstanding clause:

Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be cognizable and non-bailable within the meaning of the said Code.

My Objections/suggestions (Manzurul Haque)

Following observations of the Honorable Supreme Court in similar social criminal legislation could have been incorporated.

[Supreme Court directed that the state governments to instruct police "not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of criminal procedure code. Further, "The magistrate, while authorizing detention of the accused shall peruse the report furnished by the police officer in terms of Section 41 and only after recording its satisfaction, the magistrate will authorize detention," ]

Available at manhaq@yahoo.com

By Manzurul Haque - 1/8/2018 7:00:41 AM

By Manzurul Haque - 1/8/2018 10:32:22 PM

Dear Professor Musthafa,

I must thank you to post a comment
on this website. Only if people like your good self and others from the
higher echelon of academy and masterly in juristic sciences join the group on
this forum, the discussions will be more enriched. I am reassured to read your remark: “Stern action should be taken
against violators including imprisonment and heavy fine. Naturally the question
of triple talaq will end.”

This echoes
my following statement in my article referenced below:

“In other words, instant triple divorce must
be declared constitutionally invalid and culpable in the eye of Law, and not
included in Nikahanama as a condition of prenuptial contract.”

Re: Triple Talaq must be invalidated constitutionally and criminalized
– inclusion of prohibitive clause in Nikahnama could allow its perpetuation by
defaulters.

It is wonderful and disastrous to see the discussion by the self-styled intellectuals. I dont understand why they want to skip the real issues of safety and security of man and women in shariat. There is systematic and scientific procedure of diverse (from man's and woman's side) in shariat. If it is node inculded in Indian shariat code it should be included what safe guard the interest of man and woman equally. Thos einvolved in the discussion, including AIMPLB is skipping away. Stern action should be taken against violators including imprisonment and heavy fine. Naturally the question of triple talaq will end. no body should be allowed to take religion or anything as a vurtain or protection for their violation. presently triple talaq is not the issue. Addressing the exploitation in the name of religion is the issue

By prof. m.m.musthafa - 5/25/2017 3:39:25 AM

Mohammed is an Arabian.Islam is a Arabian cultural movements which has its roots in ancient Arabia and its head is not yet found out.As every culture is subject to innocation towards perfection.Stagnation would prove disastrous.Pre Mohammdaan culture celebrated IDOLs,But Mohammed banished them. Similarly Talaq wich is an ancient Arabian practice, need to be banished from the soil of our earth.

By DR.A.ANBURAJ - 5/6/2017 1:10:52 AM

@gulam mohiyuddin K ban triple talaq.But when u r talking about gender equality.U should also raise the issue of banning the saints sadhus who roam naked in full public

Why only man?Is this gender equality?

Suppose if their where womens in the place of man.Till now it would have been banned.Why this in equality.

By Bristol King - 4/23/2017 11:25:49 AM

@Ghulam Mohiyudin Itz Not what Muslim personal Law board says..

Itx what Quran anD Hadees is saying..

And this Should be clear and louder

If there is conflict it must be solved by Muslim Ullemas not By Drunk and murderer poltitions. ..Hope u understand

By R'aina F'ayaz - 4/23/2017 11:25:14 AM

Translation of Azaan:

By Jayaraman Subri - 4/23/2017 11:24:30 AM

Ayaan Hirsi Ali:

By Jayaraman Subri - 4/23/2017 11:23:59 AM

Do u know that Hindu of polygamy cannot get a govt job.meraj do u know By ଜ୍ୟୋତିର୍ମୟ ପଣ୍ଡା - 4/23/2017 11:23:10 AM

@Meraj Siddiqui Why should you compare to Hindu in all aspects? Shows inferiority complex in you.You try to improve your community,not Hindus.Hindus know how to progress. By Samir Padhi - 4/23/2017 11:22:48 AM